Tyson v. Commissioners

Bartol, C. J., delivered the opinion of this Court. The first three bills of exceptions present questions of evidence, the fourth brings up for review the ruling of the Cir- ⁵²⁵ cult Court upon the prayers. These will be considered in their regular order. First Exception.

The Act of 3831, ®h. 27, authorizing the building of a bridge across the Patapsco, at Ilehester, which recognized the road in question as a public road, was admissible in evidence; when accompanied by proof showing that George Ellieott, .under whom the plaintiff claimed title, was cognizant of the application to the Legislature for the passage of the law, knew and approved of its provisions and acted under it as one of the commissioners. This testimony was evidence of an admission by Ellieott that the road was a public road, and it also showed a recognition of that fact by the Legislature. Second Exception. There is no valid objection to the admissibility in evidence of the record of proceedings in 1835, for the condemnation of the road.

The jurisdiction of the County Commissioners plainly appears on the face of the proceedings, Act of 1825, ch. 219, and its supplements; (2 Dorsey’s Laws, 1709, &c.) The alleged irregularities in the action of the special commissioners, even if such existed, would not render the proceedings void, when collaterally called in question.. These irregularities are supposed to consist in the omission of the commissioners “to value and ascertain the damages that may be sustained by each and every person through whose lands the road may pass,” as provided by the sixth section. Such an objection might have been made by parties interested at any time before the final ratification of the return, as prescribed by the seventh section; but could not afterwards be made even by a party interested. Where no damages have been awarded, and the return has been finally ratified without objection, the presumption is that no damages were suffered or claimed by the proprietors.

It is very clear upon principle and authority that after the final ratification, the proceedings cannot be collaterally impeached, either on the ground that no damages or insufficient damages have been valued and ascertained by the commissioners. The same oh ⁵²⁶ servations may be made with, regard to all the other supposed irregularities in the proceedings of the special commissioners, relied on by the appellant as fatal to their validity. It appears that these commissioners made their return on the 7th day of July, 1835, the record recites that afterwards, on the 6th day of October, 1835, on motion of the petitioners, leave was granted them to withdraw the return of the special commissioners for the purpose of amending the same, and after-wards, on the 3d day of November, 1835, the petitioners returned the report and plat of said special commissioners as the same had been by them amended, which was accordingly filed, &c. The objection has been urged that there was no authority to allow the return to be withdrawn and amended by the petitioners, and that such an irregularity renders the whole proceedings void.

But it appears that the amended return was made and signed by the special commissioners, not by the petitioners, and in the face of this fact appearing on the record, the recital that it was amended and filed by the petitioners, must be treated and considered as a ■ mere clerical error or misprision. It was within the discretion of the County Commissioners to allow the return to be amended by the special commissioners, and as the record shows that the amended return was their act, no valid objection can be made to their proceedings, after they have been finally ratified, because of the recital in the record, to which we have referred. Another objection has been urged that the description and dimensions of the road are not stated with precision in the commissioners’ return; the courses and distances in length alone being given, — this is not strictly correct. The commission directs that the road shall be located of the width of thirty-two feet; the return states that the road as located is of that width, except in certain places designated, where it was not practicable to construct it of the whole width.

This departure from the directions of the commission is cured by the order of ratification. Eor these reasons we think there ⁵²⁷ was no error in the decision of the Circuit Court in the second exception. Third Exception. The opinions of the three persons appointed by the County